JUDGMENT :

[Saumitra Dayal Singh, J.]

1. Heard Shri Ashish Goyal, learned counsel for the applicant; learned AGA for the State and Shri Raj Kumar Gautam, learned counsel for the opposite party no. 2.

2. Challenge has been raised to the order dated 10.05.2022 passed by Sessions Judge, Hathrass, in Session Trial No. 204 of 2022. The order is unusual. At the stage of framing of charge, the learned court below has chosen to pass the impugned order which is not an order of framing of charge. Yet it is an order indicating the accused person may be charged with offence under Section 306 and not section 304B under which chargesheet had been submitted against them.

3. Submission of learned counsel for the applicant is, being governed by the provisions of Criminal Procedure Code, 1973 (hereinafter referred to as 'the code') and in face of specific provision of section 227 read with 228 of the Code, the learned court below had to only form an opinion that there existed ground to presume that the accused had commited an offence triable by Court of sessions. Upon such opinion being formed the only act required to be performed by the learned court below was to frame an exact charge. Insofar as charge has yet not been framed, the order dated 10.05.2022 exceeds jurisdiction since a firm opinion has been expressed already and satisfaction has been recorded by the learned court below that no charge may be framed under Section 304B IPC. The course adopted by the learned court below is both contrary to the Code and prejudicial to the trial that is yet to arise.

4. On the other hand, learned counsel for the opposite party no. 2 would contend, the learned court below has rightly made observations that no offence under Section 304B IPC is made out. No prejudice has been caused to the prosecution inasmuch as in face of Section 216 Cr.P.C. any charge framed at this stage would remain open to alteration at a later stage of the trial, if it arises.

5. Having heard learned counsel for the parties and having perused the record, in the first place the procedure followed by the learned court below is irregular. The opinion required to be formed for the purpose of passing an order under Section 228 Cr.P.C. is a one time proceeding. In absence of any other power vested in the court below and in absence of any requirement under the Code the learned court below has fallen in error in expressing its tentative opinion as to non-existence of ingredients of offence under Section 304B.

6. Since charge has yet not been framed, the prosecution and the applicant cannot be precluded from raising and/or again pressing for framing of charge under Section 304B. However, in view of the observations contained in the impugned order, that exercise would only be a formality as the learned court below has expressed tentative opinion against framing of charge under Section 304B. That peculiar difficulty arises solely on account of the fact that the learned court below has deviated from the procedure prescribed under the Code.

7. In view of the above no useful purpose would be served in keeping the application pending or calling for a counter affidavit at this stage. It is disposed of with the observation, the parties may appear before the learned court below on the next date for framing of charge/s. The learned court below may hear the parties de novo and pass a fresh order to frame such charges as may appear to it to be required for the purpose of trial to commence. In doing that the learned court below may not be prejudiced by any observation made in the impugned order of this order. Yet, in light of the above, it may make a brief discussion of the submissions put forth by the parties.